USA v.MIGUEL BUSTAMANTE, RAPHAEL PENA, ABRAHAM ESTREMERA AND STEVE LISCANO, Nos. 03-3388, 04-1469, 05-4798 & 05-4799.  On November 20, 2002, a grand jury indicted Miguel Bustamante, Raphael Pena, Abraham Estremera, and Steve Liscano for a number of crimes related to a drug conspiracy in Aurora, Illinois.

For the following reasons, we affirm Liscano’s, Estremera’s, and Pena’s convictions and Liscano’s and Estremera’s sentences. We also affirm the district court’s ruling on Bustamante’s motion to suppress. We vacate Pena’s sentence, however, and remand for resentencing.

Between June 2000 and July 2002, members of the Latin Kings street gang operated a drug conspiracy in Aurora, Illinois. The conspiracy’s primary drug distributor was a man named Juan Corral, whose ultimate downfall was a penchant for discussing drug deals over the phone.

Between September 2001 and June 2002, Corral fronted Liscano at least sixteen kilograms of cocaine during monthly drug deals. From February 2002 to June 2002, Corral fronted Estremera cocaine once every three weeks in an amount totaling approximately seven kilograms.  Between February 2002 and June 2002, Corral fronted Pena cocaine approximately once a month, in amounts totaling six to eight kilograms.

On July 24, 2002, police arrested Pena at 958 Oliver in Aurora, where, according to Corral, Pena lived with his girlfriend. FBI agents recovered a handgun inside a man’s black jacket on a shelf in a first-floor closet, a police scanner, a scale, more than $10,000 in cash, and a gang ledger.

At sentencing, the district court found that Pena was responsible for more than 150 kilograms of cocaine be- cause he knew that other people were involved with Corral in the distribution of drugs. The court said that the phone call in which Pena asked Corral if there was anyone else in the car who could sell him drugs demonstrated that "Pena knew that others were involved, others could be trusted, others were in the business of distributing drugs pursuant to the conspiracy."

Liscano, Estremera, and Pena argue that the government offered insufficient evidence to prove that they were part of a conspiracy to distribute drugs. They also argue, alternatively, that the government offered insufficient evidence to prove that they were part of the conspiracy alleged in the indictment and that a there was a fatal variance between the indictment and the proof at trial. See United States v. Stigler, 413 F.3d 588, 593 (7th Cir. 2005).

1. Sufficiency of the Evidence

When reviewing the sufficiency of the evidence, the Court views the evidence in the light most favorable to the government and upholds the verdict if a jury reasonably could find the essential elements of the crime beyond a reasonable doubt. See United States v. Hicks, 368 F.3d 801, 804-05 (7th Cir. 2004).

To prove a drug conspiracy, the government must show more than a series of spot sales because buying and selling drugs, without more, does not constitute a conspiracy. See United States v. Thomas, 284 F.3d 746, 752 (7th Cir. 2002). Rather, the government has to prove "an under-standing-explicit or implicit-among co-conspirators to work together to commit the offense." United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003). Factors indicat- ing a drug conspiracy include transactions that involve large quantities of drugs, prolonged cooperation between parties, standardized dealings, a level of mutual trust, and sales on credit. See United States v. Johnson, 437 F.3d 665, 676 (7th Cir. 2006).

In this case, the government offered sufficient evidence to prove that Liscano, Estremera, and Pena engaged in a conspiracy to distribute drugs. Corral fronted each of them large quantities of drugs on multiple occasions, so Corral’s investment return depended on the defendants’ success in reselling the drugs. The government offered little evidence of prolonged cooperation or standardized dealings, but that type of evidence-though relevant-is not necessary to sustain a conviction. As in Johnson and Medina, the jury reasonably could have found, given the large sales of drugs on credit, that the defendants agreed to help Corral ply his trade.

2. Variance

Having resolved that the government’s evidence was sufficient to prove that Liscano, Estremera, and Pena engaged in a drug conspiracy with Corral, the next question is whether there was evidence that they agreed to participate in the single, larger conspiracy alleged in the indictment. If not, then there was a variance between the indictment and the proof at trial. See United States v. Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991).

Even if there was a variance, however, it would not necessarily affect the validity of the defendants’ convictions or sentences, because "a prosecutor may elect to proceed on a subset of the allegations in the indictment, proving a conspiracy smaller than the one alleged." United States v. Duff, 76 F.3d 122, 126 (7th Cir. 1996). We will reverse only when a defendant is prejudiced by evidence that relates to other conspiracies or when the district court increases a defendant’s sentence based on conduct unrelated to the conspiracy in which he participated. See Townsend, 924 F.2d at 1388-89.

In this case, the larger, single conspiracy was a "hub and spoke" conspiracy, an arrangement in which a core conspirator (in this case, Corral) moves from "spoke to spoke, directing the functions of the conspiracy." United States v. Chandler, 388 F.3d 796, 807 (11th Cir. 2004). For a hub and spoke conspiracy to function as a single unit, a rim must connect the spokes together, for otherwise the conspiracy is not one but many. Id. In other words, for such a conspiracy to exist, "those people who form the wheel’s spokes must have been aware of each other and must do something in furtherance of some single, illegal enterprise." United States v. Levine, 546 F.2d 658, 663 (5th Cir. 1977); see also United States v. Whaley, 830 F.2d 1469, 1474 (7th Cir. 1987).

In this case, there was no variance with respect to the proof against Liscano.  There also was no variance with respect to the proof against Estremera because the government offered evidence that he allowed Corral to use his garage to store drugs.

By contrast, the evidence against Pena was insufficient to prove that he participated in the hub and spoke conspiracy. The government contends that Pena knew the full extent of the conspiracy because he asked Corral if anyone in Corral’s car could sell him drugs, but a defendant’s knowledge of a conspiracy is not enough to prove that the defendant participated in it. See Townsend, 924 F.2d at 1397.

3. Prejudice

A variance may prejudice a defendant at both trial and sentencing. See Townsend, 924 F.3d at 1388-89. An allegation of a single, multiple-person conspiracy allows the government to try several defendants together and can prejudice a defendant if the jury hears incriminating evidence (also known as "spillover" evidence) that is admissible only against other defendants. See United States v. Johnson-Dix, 54 F.3d 1295, 1308 (7th Cir. 1995). In those circumstances, a jury might convict one defendant merely because he associated with the others. Alleging a single conspiracy also allows the government to make more liberal use of the co-conspirator exception to the hearsay rule. See Townsend, 924 F.3d at 1388 (citing Federal Rule of Evidence 801(d)(2)(E)). Finally, a variance can cause a defendant to be punished for acts committed by individuals with whom he did not conspire. Id. at 1389; Glenn, 828 F.2d at 860.

To determine whether a variance prejudiced a defendant at trial, the Court considers several factors:  [the] (1) surprise to the defendant resulting from the variance, (2) possibility of subsequent prosecution for the same offense, (3) likelihood of jury confusion as measured by the number of conspirators charged and the number of separate conspiracies proven, and (4) likelihood of jury confusion in light of the instructions given the jury limiting or excluding the use of certain evidence not relating to the defendant.  Townsend, 924 F.2d at 1410-11.

The jury’s drug quantity finding gives us some pause in light of the variance, because it may have based this finding-as it pertained to Pena-on cocaine sales in which Pena was not involved.

The main problem with the variance was that the district court held Pena accountable for 150 kilograms of cocaine, most of which was unrelated to his conspiracy with Corral. Section 1B1.3 of the Federal Sentencing Guidelines says that in the case of jointly undertaken criminal activity, a defendant’s base offense level "shall be determined on the basis of . . . all reasonably forseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity."

As discussed above, the government’s evidence was insufficient to prove that Pena furthered the larger conspiracy alleged in the indictment. Pena may have known that the larger conspiracy existed, but no reasonable fact finder could conclude that the government’s evidence, in particular the ledger, proved that Pena promoted the larger endeavor’s success. Accordingly, the district court should have based Pena’s offense level on the cocaine that he purchased from Corral-the only jointly undertaken criminal activity that the government proved.

As such, this Court VACATES Pena’s sentence and REMANDS for resentencing consistent with this opinion.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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